On April 29, the Tampa Tribune published an article by Shannon Behnken entitled, “Homeowners association rents home it doesn’t own”. The HOA did not file an assessment foreclosure, but recorded a lien for $2,565, much of which appears to be attorneys fees and “association enforcement fee”. The homeowner Joanne McCarn still has legal title to her home. According to her current attorney, Ms. McCarn tried to make payment but the Board would not accept it. In Ms. McCarn’s pro se emergency motion to dismiss, she raised her tender of payment but was not permitted a hearing. There were also questions of whether the owner received proper notice. The homeowner claims she tried to call the association attorney but the attorney or her staff would not speak to her. That was my experience as well – the attorney does not take calls from homeowners or evidently anyone else.

The HOA claimed that McCarn rented her home but the tenants did not pay upon the HOA’s demand. The HOA asked a judge to evict the tenants and appoint a receiver to collect rents from new tenants. That is only part of the story, however. The eviction provision in F.S. 720.3085 is a relatively new law allowing HOAs to demand and collect rents from the tenants of owners who are delinquent on assessments. The very last sentence of this statute allows a court to “supersede the effect of this subsection by appointing a receiver.” Logically, that would mean that a receiver, rather than the HOA, could collect the rents from the owner’s tenants. However, in this case, the statute was interpreted broadly, to say the least, to deprive an owner of a substantive property right.

The judge signed an order of eviction of the “unknown tenants” which follows the statute. That is where the story gets sticky. The Court granted a writ of possession to the HOA, not a receiver or the homeowner who still has legal title to the property. What statute or provision in the Declaration of Covenants permits an HOA in this situation to rent or act as the owner without title to the property? What gives the HOA the right to threaten the lawful owner (and her attorney) with trespass and to bar her from access to her own property without a foreclosure proceeding? Possession is a substantive property right, and the Declaration of Covenants – the homeowner’s contract – contained no such authority to dispossess the homeowner, nor did the law at the time the Declaration was recorded. Case law also does not appear to support this.

Ch 720.3085 (8) gives the HOA certain powers but also limits the HOA’s role as landlord:

The association may issue notice under s. 83.56 and sue for eviction under ss. 83.59-83.625 as if the association were a landlord … However, the association is not otherwise considered a landlord under chapter 83 and specifically has no obligations under s. 83.51.

Does this mean that the HOA can seize possession and have all power of the owner but no responsibility for maintenance? It can commit waste while barring the lawful owner from her property? Surely that is not what the legislature intended. The HOA now has possession of a home it does not own.

I’d love to hear what readers, legislators and attorneys think of this provision. Is this the intended or unintended consequence of a well-meaning law? If interpreted in this manner, the law is possibly a serious constitutional due process violation and an impairment of contract. Ms. McCarn’s attorney George Harder, Esq. of Lutz, Florida, agrees and is ready to fight for his client’s rights.

Comments (11 Comments)

Of course not – the association cannot take possession of the home or use the home for its own benefit.

The association has the power to demand rent from the tenant and if the tenant doesn’t pay, then the association can evict. Is that constitutional? Well, when was this lease entered into (before or after the new law)? What do the governing documents say (many of them have a rent assignment) and if so – the lease should be subject to the governing documents.

Meanwhile, I don’t have much sympathy b/c if she has the money to hire a lawyer to challenge the constitutionality of the rent diversion, then she should have the money to pay what she owes to the association!

Lisa,
The lawyer is representing this owner pro bono. The issue here is that the HOA not only evicted the tenants, but did not name the homeowner in the lawsuit but proceeded to get a writ of possession in the HOA’s name. The HOA then changed the locks, remodeled the home and rented it to whom they wanted.

It is happening again in that same community, to other owners. In one case, the renter is paying rent, but the HOA kicked her out anyway. (Another article was written about that – I confirmed the first case by reviewing records, but not this one yet).

Homeowner associations are having difficulty in these economic times and it is important to recover assessments as much as possible – legally.

The problem is when homeowners are bulldozed and their legitimate rights thrown out the window. Is this a society you want to live in? I sure wouldn’t.

Lisa, that is my reading of the statute as well. The association has every right to collect from a tenant if the owner is in arrears, and evict the tenant that does not pay the HOA. This HOA went much farther than that. The HOA does not have the right to take possession of the home, ‘remodel’ it and re-rent it, then threaten the lawful owner with trespass!

In this case, it appears the homeowner DID try to tender payment and was refused. The board would not take it and the lawyer does not take calls from homeowners (or anyone else from what I could tell).

I don’t know what she is paying the attorney, but if she has been wronged as I believe she was, she has every right to retain an attorney. So yes, I do have sympathy for her under those circumstances.

Property rights still have meaning. At least, I hope they do. And LIsa, what if there were charges on the lien that are not proper? Does she not have a right to challenge them? I don’t know if that is the case, but if it is I certainly think she has a right to do so.

Does a receiver, who takes over an HOA, have standing to bring foreclosure actions on behalf of the association?

Would the receiver since she is acting as the board of directors be considered an employee of the association?

Since a receiver is the arm of the judge, it just doesn’t sound ethical that a judge would be ordering foreclosure actions against its members when it costs the association so much in outrageous legal fees. Also so of the HOA foreclosure actions are dragging out over 4 years.

And yes they do foreclose and do money judgment actions at the same time in the same complaint. The word “and” is what they go on.

IN this case, the Writ of Possession was in the HOA’s Name which was completely improper – the owner was not named in the eviction suit but had a substantial property right revoked. I think the rental provision statute needs work. This HOA is probably an extreme, but what gives the HOA the right ot commit waste – go in and “remodel” by their standards presumably.
This is out of control.

At best, the reciever’s role must be narrowly defined to collecting rents and evicting – NOT getting a writ of possesion in the HOA’s name or even the receiver’s name,

The HOA has a remedy and it should exercise it. This is wrong, and I hope that the statute will change. It is vague and although anyone with a ounce of understanding of property law would not read it to dispossess the homeowner, that is how it is being read. Arguably, it is also an impairment of contract.

This is nothing compare to an condo association evicting the acual home owner, changes the lock, and then it rents out the property. No court orders, no writ of possession, and no foreclosure of HOA lien. The HOA took illegal possession of the property for two years and rented it out. This happened in Aventura, FL.

 There is something so fundamentally wrong with this. If the association acted within the law then there is a serious problem with the law. The homeowner may or may not have owed the money. That issue is clouding the real issue. A much, much, bigger issue. The fact that the HOA was able to take possession without the homeowner having a day in court and going through a process is wrong. What is to stop an HOA from having a personal gripe or vendetta with a particular homeowner and just claim they never got their payment? Where is the due process? If a bank who is owed hundred’s of thousand’s of dollars are required to go through a process to remove someone from their homes, how is it that an HOA can accomplish this so swiftly without any process? Shameful! Everyone should be outraged! Most HOA’s are run by a non professional board of 5-6 members (neighbor’s). This small minority group has the authority to exclusively make the rules, enforce the rules and hand down punishment. There’s a problem with that too! I can’t understand how they are able to constitutionally do this. The HOA can decide when someone is in violation, impose a fine, tack on legal fees and take possession of a house without the homeowner having an opportunity to defend themselves. Why does the three branches of gov’t apply to every other level of gov’t except for HOA’s? If the homeowner is wronged their only option is to hire an attorney. Unfortunately the only time people are aware of the amount of authority HOA’s have is when it’s too late and they have become victims to their policy. By then most homeowners cave and just comply since it’s cheaper to pay a fine than to fight a legal battle. As a result, nothing changes. The Laws need to change and homeowners need to be protected from power driven HOA boards that have the complete authority to act as the legislative, executive and judicial branches of HOA gov’t. Just another example of how our lawmakers have failed us.

@Angela B. I could not agree with you more. The idea of collecting rents has been challenged itself, and i have mixed feelings on that. It has been helpful for associations. But this time the HOA went way too far. They essentially seized and took control over the property.
They first got an eviction, then a writ of possession in the HOA’s name, then petitioned and obtained a receiver that has far reaching powers of near total control over the home with no end in sight. There is nothing that triggers release of the property back to the homeowner.
I daresay that it won’t matter what the owner pays, this HOA will keep possession of this house. That is reprehensible.

The condo association went too far when they evicted the home owner from his own townhouse. He was living there and got an eviction notice on his door. He thought the bank was evicting him, but it was the HOA doing the eviction without any court order, writ of possession, or foreclosure of HOA lien. He told the HOA that he was coming back and wants the HOA’s renter out. He is getting his townhouse back in a few days. The renters left the place real dirty. The HOA said he still owes them $6k. The HOA is charging outragous fees. They even charge him a return check fee because the HOA renter’s check bounce. He is also charge a late fee for every month: eventough, the HOA’s renter is paying the rent. There is even a $67 fee each month for the maintenance of the deliquent account. He is trying to negotiate the debt on his own, but will have to hire an attorney if his debt doesn’t get reduced.

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DONNA DIMAGGIO BERGER is a Shareholder with the law firm of Becker & Poliakoff. She has represented all types of shared ownership communities throughout Florida over the last two decades and has worked closely with the Legislature to shape the laws that govern private residential communities.

LISA MAGILL is a shareholder in Becker & Poliakoff's statewide Community Association Law practice group. She has been a leader of and active in various organizations dedicated to community association issues, especially outreach and education.

LINDSAY RAPHAEL a partner with Tripp Scott, focuses her practice on condominium and homeowners association matters, as well as property financing and transaction counsel to buyers, sellers, lenders and developers of residential and commercial real estate. She is a regular contributor to Condo Management Magazine.

JEAN WINTERS has focused on representation of both community associations and homeowners living in associations since 2006. She is a partner at Winters & Winters, P.A. The firm has more than 30 years of combined experience in real property law.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Being general in nature, the information provided may not apply to your specific factual or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.